Cooke (a pseudonym) v The Queen
[2022] ACTCA 44
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Cooke (a pseudonym) v The Queen |
Citation: | [2022] ACTCA 44 |
Hearing Date: | 17 May 2022 |
DecisionDate: | 30 August 2022 |
Before: | Mossop, Loukas-Karlsson and Rangiah JJ |
Decision: | See [70] |
Catchwords: | CRIMINAL LAW – APPEAL – PRACTICE AND PROCEDURE – appeal against sentence – whether sentencing judge erred by considering strength of prosecution case when determining appropriate discount for plea of guilty – no submission that case was “overwhelmingly strong” – strength of prosecution case only relevant to s 35(4) for guilty plea discount – specific error – appeal allowed – re-sentence |
Legislation Cited: | Crimes Act 1900 (ACT) s 61 |
Cases Cited: | Alan (NT) Alumina v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 |
Parties: | Cooke (a pseudonym) ( Appellant) The Queen ( Respondent) |
Representation: | Counsel S McLaughlin ( Appellant) K McCann ( Respondent) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecution ( Respondent) | |
File Number: | ACTCA 54 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the Australian Capital Territory Before: McWilliam AJ Date of Decision: 24 September 2021 Case Title: R v Cooke (a pseudonym) Citation: [2021] ACTSC 249 |
MOSSOP J:
I agree with Loukas-Karlsson J.
LOUKAS-KARLSSON J:
Introduction
On 24 September 2021, the appellant was sentenced to 23 months imprisonment with a non-parole period of 18 months (R v Cooke (a pseudonym) [2021] ACTSC 249 (primary judgment)).
The offender was sentenced for a single count of act of indecency with a person under the age of 10 years contrary to s 61(1) of the Crimes Act 1900 (ACT) (Crimes Act). The sentencing judge assessed the appropriate starting point for the sentence as 28 months which was reduced by “approximately” 18% on account of the offender’s plea of guilty.
The non-parole period reflects approximately 78% of the head sentence.
The relevant agreed facts were outlined by the sentencing judge at [3]-[9]. It is not necessary to set out those facts in great detail.
Broadly, according to the agreed facts as set out by the sentencing judge, the offending relates to an instance where the offender was caring for the victim and his own child at the home he lived in with the victim’s mother. The victim referred to the offender as her stepfather.
On 26 April 2021 while caring for the victim, the offender touched the victim’s vagina with his finger for about 20 seconds. The victim later reported the incident to her mother who confronted the offender. The offender subsequently admitted to the victim’s mother that he had touched the victim’s vagina. The offender later participated in a police interview where he made statements regarding the incident, including stating that his finger was on the victim’s vagina for about 20 seconds.
The offender pleaded guilty to the offence on the sixth mention in the Magistrates Court (three of the mentions were bail variations).
Background to the appeal
The appellant filed an application seeking leave to appeal out of time on 10 November 2021. The application was not opposed by the respondent, and leave was granted by consent in chambers on 24 November 2021.
On the day of the hearing, the appellant sought leave to rely on an amended notice of appeal. Leave to rely on the amended notice of appeal was not opposed by the respondent and was granted by the Court.
As amended, the grounds of appeal are as follows:
…
4. The grounds of appeal are:
(a) The sentencing Judge did not apply the appropriate discount for an early plea of guilty;
(b) The sentencing Judge incorrectly considered the strength of the prosecution case in determining the discount to be afforded to the plea of guilty;
(c) The length of the non-parole period was excessive;
(d) the sentencing Judge failed to provide sufficient reasons in determining the non-parole period; and
(e) The overall sentence was manifestly excessive
For the reasons that follow, I am satisfied that an error of the kind identified in House v The King (1936) 55 CLR 499 (House v The King) was made by the sentencing judge by taking into account the strength of the prosecution case when deciding the appropriate discount for the offender’s plea of guilty.
Accordingly, it is necessary for the Court to exercise the sentencing discretion afresh to determine the appropriate overall sentence: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [42]; Thammavongsa v The Queen [2015] NSWCCA 107; 251 A Crim R 342 at [4], [44]; see also Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205.
It is therefore strictly unnecessary to consider the other appeal grounds. Reference will be made to the submissions concerning manifest excess as the factors highlighted in the submissions are relevant to the resentencing exercise.
Did the sentencing judge err by taking into account the strength of the prosecution case in determining the discount for the plea of guilty?
In assessing the appropriate discount for the offender’s plea of guilty the primary judge stated at [19]-[20]:
He pleaded guilty on 6 July 2021 in the Magistrates Court. That was the sixth mention of the matter (although three of those mentions were bail variations). It was also in advance of a hearing and saved the public expense of a trial. The conduct of a trial would have been an extremely stressful experience for the child victim and her mother. The offender is entitled to recognition of that guilty plea, having regard to its utilitarian value: see ss 35(2) and 35(3) of the Sentencing Act.
As to the consequent discount applicable to the ultimate sentence, the offender had made some admissions to his de facto partner and to police on the night of the offending. The admissions as to the actual conduct were consistent with what the child victim had reported, noting that the complaint was made contemporaneously, on the day the offending conduct occurred. Having also had regard to the other matters set out in ss 35(2) - 35(4) of the Sentencing Act, some of which are discussed in more detail below, I assess the appropriate discount at just shy of 18 per cent, reflecting the strength of the Crown case.
(emphasis added)
It is worth noting that no submission was advanced before the sentencing judge (or before this Court on appeal) by the prosecution that the case against the appellant was overwhelmingly strong. As such it was common ground between the parties that s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) did not apply.
The appellant submitted that the sentencing judge erred by incorrectly considering the strength of the prosecution case in determining the appropriate guilty plea discount in circumstances where s 35(4) did not apply.
This submission, in effect, argues that the strength of the prosecution case may only be taken into account by a sentencing judge for the purpose of s 35(4) and that if the case is not overwhelmingly strong then the discount for a plea of guilty cannot be reduced on account of the strength of the prosecution case,
The respondent accepted in oral submissions that if this Court found that the strength of the prosecution case was not a relevant consideration then the sentencing judge made a specific error of the kind identified in House v The King.
The respondent submitted, however, that the strength of the prosecution case was not an “irrelevant” consideration and that the sentencing judge was entitled to have regard to it as a relevant factor in exercising her discretion.
In particular, the respondent submitted that the factors outlined in s 35(2) are not an exhaustive list, and that a sentencing judge may have regard to other matters in exercising the discretion under s 35(3). I accept this submission, it is not contentious that s 35(2) is not an exhaustive list of the factors a sentencing judge may have regard to when deciding the appropriate discount for a plea of guilty.
The respondent further submitted that “there is nothing apparent in the wording of section 35 … that the strength of the case … is an irrelevant consideration that cannot be taken into account save for when a case falls within subsection (4)”. I do not accept this submission for the following reasons.
Section 35(1)-(4) of the Sentencing Act states:
35 Reduction of sentence—guilty plea
(1) This section applies if—
(a) an offender pleads guilty to an offence; and
(b) based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment.
(2) In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:
(a) the fact that the offender pleaded guilty;
(b) when the offender pleaded guilty, or indicated an intention to plead guilty;
(c) whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;
(d) the seriousness of the offence;
(e) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.
(3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.
(4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.
…
Although the factors outlined in s 35(2) are not an exhaustive list, the presence of s 35(4) poses clear interpretive challenges for the respondent’s submission.
As the High Court outlined in Alan (NT) Alumina v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]:
[T]he task of statutory construction must begin with consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text …
In this case, the obvious inference to draw from the presence of s 35(4) and the lack of reference to the strength of the prosecution case in s 35(2) is that the strength of the prosecution case is only to be considered by a sentencing judge where the case was overwhelmingly strong and that, otherwise, in determining the appropriate guilty plea discount, the strength of the prosecution case would not be a relevant consideration.
That approach is consistent with the text, context and purpose of s 35. In particular, if the approach contended for by the respondent were to be accepted, s 35(4) would have only a very limited purpose as the strength of the prosecution case would always be a relevant consideration for a sentencing judge.
As McHugh, Gummow, Kirby and Hayne JJ stated in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [71].
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
(citations omitted)
I note that the approach suggested above is consistent with previous decisions of this Court which have suggested that the strength of the prosecution case is not relevant to the guilty plea discount (outside of the context of s 35(4)). For example, in Zhao v The Queen [2018] ACTCA 38 at [29] the Court stated:
We do not accept that the primary judge fell into error, as suggested by the appellant, by taking into account the strength of the Crown case in determining the extent of the discount to be afforded by reason of his pleas of guilty. A fair reading of the primary judge’s sentencing comments places it beyond doubt that his Honour was not suggesting that the level of discount to be afforded for the pleas of guilty was linked to the strength of the prosecution case. What his Honour said, in fact, was that the discount for the utilitarian value of the appellant’s pleas was not affected by the strength of the prosecution case. This is consistent with accepted principle: R v Sutton [2004] NSWCCA 225; 41 MVR 40 and Toumo’ua.
(emphasis added)
It is worth noting that R v Sutton [2004] NSWCCA 225; 41 MVR 40 established the position in New South Wales that the strength of the prosecution case is not relevant to determining the discount afforded to a plea of guilty: see also R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1.
The respondent submitted that some previous decisions of this Court support the contention that the strength of the case is a relevant factor. In particular, the respondent referred the Court to the decision of Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27 (Miller) submitting that the Court in that case “accepted the proposition that the sentencing judge in that case was correct to consider the strength of the case in determining the question of a discount”.
In Miller Wigney J stated at [76]-[77]:
It may be accepted that it is common, if not customary, in this jurisdiction for a discount of 25% to be given where a plea of guilty was entered at an early stage in the Magistrates Court. It may equally be accepted, as a general principle, that there should be consistency in fixing discounts for pleas of guilty. There is an obvious public interest in offenders and their advisers knowing the range of discount likely to be fixed when a plea of guilty is entered at a particular stage of a criminal proceeding.
Those considerations, however, should not lead the Court to effectively impose a tariff in respect of discounts entered at particular stages. Section 35 of the Sentencing Act makes it clear that the considerations that a court should have regard to in considering the lesser penalty that should be imposed by reason of a guilty plea are not limited to the timing of the plea, as important as that consideration is. It is equally clear that the determination of the appropriate lesser penalty is an evaluative exercise which involves the weighing up of a number of relevant considerations.
(emphasis added)
It is also worth noting the comments made by his Honour at [78]:
Although the sentencing judge’s reasons for fixing a discount of 20% for the Series 3 offences were sparse, it is readily apparent that he accepted that there was “utility” in the pleas and that they were made in a “timely manner”. Equally, however, his Honour had regard to the fact that the Crown case was “very strong”. There is nothing to suggest that the sentencing judge had regard to any irrelevant considerations, or failed to have regard to any relevant considerations, or acted on any incorrect principle. The appellant did not submit otherwise. It could scarcely be submitted that the discount given was “unreasonable or plainly unjust” (see House at 505) given that it was implicitly accepted by the appellant that a discount of just 5% more would have been reasonable.
(emphasis added)
In Miller, Murrell CJ and Elkaim J indicated that they agreed “almost entirely with the consideration of the appeal by Wigney J” but not as to his Honour’s ultimate conclusion. Their Honours did, however, in contrast to Wigney J, find that the sentencing judge erred in assessing the appropriate discounts for the offender’s pleas of guilty and assistance to authorities.
Relevantly to this case, their Honours increased the guilty plea discounts awarded by the sentencing judge at [12] and [17]. There is a pronounced difficulty in reconciling their Honours’ increase to the guilty plea discounts with their statement that they agreed “almost entirely” with the principles outlined by Wigney J.
Nowhere in their remarks do Murrell CJ and Elkaim J refer to the consideration by the sentencing judge of the strength of the prosecution case in determining the s 35 discount. In dealing with the relevant appeal ground, their Honours specifically increased the discount awarded for the first of the “Series 3 offences” from 20 to 25% and, in doing so, could not have applied or endorsed the reasoning of Wigney J as set out at [78].
In the result, I do not accept the respondent’s submission that Miller is authority for the proposition that the strength of the prosecution case is a relevant consideration outside of the context of s 35(4).
Similarly, in oral argument, the respondent submitted that the decision in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) “inferentially” supported the submission that a strong prosecution case was “at least a feature in determining [the appropriate] discount”. The respondent did not refer the Court to a particular passage from Toumo’ua that is said to support that position.
In Toumo’ua the Court, when dealing with the question of when s 35(4) of the Sentencing Act applies, stated at [67]-[73]:
In NSW, the strength of the prosecution case is not taken into account when determining the sentencing discount, and is only relevant to contrition and remorse: R v Sutton [2004] NSWCCA 225 at [12]. In Thomson, the Court decided that, while the strength of the prosecution case had no bearing on the utilitarian value of the plea of guilty and the associated discount, where a plea of guilty amounted to a “recognition of the inevitable” because it was entered in the face of an overwhelming prosecution case, then this consideration strongly informed whether contrition was genuine: at [137]–[139].
In this jurisdiction, demonstrated remorse is a relevant and discrete sentencing consideration to be taken into account under s 33(1)(w) of the Sentencing Act. Presumably, the strength of the prosecution case may inform the issue of remorse.
But in contradistinction to the position in New South Wales, in this jurisdiction the sentencing court is precluded, pursuant to s 35(4) of the Sentencing Act, from allowing a “significant reduction” for a plea of guilty if the prosecution case is “overwhelmingly strong”.
The rationale for importing this consideration into s 35, which is otherwise largely focused on the timing of the plea of guilty and its associated utilitarian value, is unclear. The Explanatory Statement does not elaborate on the purpose of including s 35(4). In Coggan v The Queen [2013] ACTCA 49 at [20], the Court explained that even an overwhelming prosecution case required an enormous amount of work and it was not unknown for an apparently overwhelming prosecution case to fail.
In any event, in cases involving a strong but not “overwhelmingly strong” prosecution case, there is no reason to reduce the discount given for the utilitarian value of a plea of guilty. In Monfries at [44] Murrell CJ (with whom Burns and Ross JJ agreed on this point) said:
Despite the terms of s 35(2)(d) and (4) of the Sentencing Act, it has been held that the utilitarian value of a guilty plea may be recognised in the face of a strong prosecution case.
On this appeal, the appellant asserted that the prosecution case was “overwhelmingly strong” but did not argue that s 35(4) had precluded a “significant” discount.
We agree that the prosecution case was very strong, although largely circumstantial. However, we do not consider that it fell into the very small class of cases that satisfy the “overwhelmingly strong” requirement in s 35(4) of the Sentencing Act. On the other hand, we accept the appellant’s submission that there was no deficiency in the prosecution case that could explain the high discount that was given for the pleas of guilty.
Again, I do not accept the respondent’s submission that these passages from Toumo’ua are authority for the proposition that the strength of the prosecution case is a relevant consideration outside of the context of s 35(4). To the contrary the clear and relevant statement of principle from the judgment is that the strength of the prosecution case is not relevant to the utilitarian benefit of the plea. I agree with that proposition.
The Court in Toumo’ua also found that the strength of the prosecution case is a relevant consideration when assessing the issue of remorse. Again, I agree. To the extent that the above passages can be said to “inferentially” support the respondent’s submission, they do so in obiter. The respondent’s submission appears in my view to be focused on the final sentence extracted above, namely that:
On the other hand, we accept the appellant’s submission that there was no deficiency in the prosecution case that could explain the high discount that was given for the pleas of guilty.
To the extent that the Court in that statement is suggesting that the strength of the prosecution case is relevant to some aspect of the guilty plea discount (other than the primary consideration of the utilitarian benefit) the Court did not engage with the statutory construction arguments that I have outlined above.
In my view, the respondent’s submission places too much weight on the final sentence of [73], which, as noted above, is obiter and does not address the principles of statutory construction or how the approach can be reconciled with the presence and purpose of s 35(4).
The respondent submitted that there are a number of first instance decisions where sentencing judges refer to the strength of the prosecution case in coming to the appropriate discount for a plea of guilty. So much can be accepted. That does not however advance the respondent’s argument. To the extent that any sentencing judges have done so, it is not the correct approach in accordance with these reasons.
The respondent noted that the decisions of this Court are “not harmonious” in how they assess the relevance of the strength of the prosecution case. For the reasons I have outlined above, I do not fully accept this submission. The cases the respondent has referred the Court to uniformly did not consider how s 35(2)-(3) could be read consistently with s 35(4). Those cases further cannot be taken as good authority, for the reasons I have explained above, for the proposition that the strength of the prosecution case is a relevant factor outside of the context of s 35(4).
Separately, it is worth noting that taking into account the strength of the prosecution case would create significant difficulty for predictability of guilty plea discounts (and for consistency in guilty plea discounts), especially as pleas entered at an early stage may be made well before the full strength of a prosecution case becomes apparent. Such an approach would therefore discourage offenders from pleading guilty and would not have been the intention of the legislature.
In my view, a purposive reading of s 35 supports the construction I have outlined above, namely, that the strength of the prosecution case is only relevant to the guilty plea discount if s 35(4) is enlivened.
It is apparent from the sentencing remarks that the sentencing judge had regard to the utilitarian benefit of the plea of guilty. The discount was then assessed as 18% in light of the strength of the prosecution case. Given that no submission was advanced before her Honour that s 35(4) applied, her Honour erred in considering the strength of the prosecution case in coming to her discount.
In the result the sentencing judge made a specific error, and this Court must proceed to resentence the offender.
Manifest Excess Submissions
Before proceeding to resentence the offender, it is convenient to set out the appellant’s and prosecution’s submissions concerning manifest excess. The factors highlighted in the submissions have some relevance to the resentencing exercise.
The appellant referred to the decisions of R v Fitzpatrick (Supreme Court of the Australian Capital Territory, Nield AJ, 25 June 2013); R v LE [2018] ACTSC 143 and R v KI [2019] ACTSC 292, submitting that those decisions were “best placed to provide guidance” on sentencing practice.
The appellant further submitted that the sentencing judge in reaching her ultimate sentence did not have regard to the offender’s apology to the victim on the night of the offending and the counselling sessions the offender attended at Everyman Australia.
Ultimately, the appellant submitted that having regard to the objective seriousness of the offence, current sentencing practices and the circumstances of the offender the sentencing judge’s starting point of 28 months was manifestly excessive.
The respondent submitted that the sentencing judge’s approach was appropriate in light of sentencing practice and the objective seriousness of the offending conduct and the subjective circumstances in this case.
In particular, the respondent submitted that the sentencing judge correctly considered the attitude of the offender to the offending, alongside consideration of the view of the authors of the pre-sentence report, namely that the offender had a low risk of sexual re-offending.
Resentencing
The approach taken to resentencing was outlined in Kentwell at [42] where French CJ, Hayne, Bell and Keane JJ stated:
… When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome.The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit …
(emphasis added, citations omitted)
The maximum penalty for the offence is 12 years imprisonment.
The sentencing judge discussed the factors relevant to objective seriousness at [21]-[35], concluding at [36] that the case was one “above the medium level of objective seriousness”. I have come to a similar assessment of the objective seriousness of the offending. I further note that it was agreed by the offender that it could not be said that his offence was an “isolated incident”: primary judgment at [51].
Counsel for the appellant described the agreed position as follows during the hearing of the appeal:
The agreed position between the parties, and it seems to have been adopted by her Honour during the exchanges in the proceedings was that no submission could be made that was an isolated incident and therefore there was a lesser ability to rely on prior good character, but of course, Mr Cooke was not being sentenced but for more than one offence.
All right. So her Honour just mentioned that to negative any suggestion that it was an isolated offence?
That is my understanding of that passage, yes.
It is clear from the victim impact statements that the offending has had a significant impact on the victim and the victim’s mother. It is particularly important to note that the offending occurred in the victim’s home while the victim was under the care of the offender.
Similarly, I note that for offences of this kind general and specific deterrence are important considerations as is rehabilitation.
In R v BJW [2000] NSWCCA 60; 112 A Crim R 1, Sheller JA discussed the importance of deterrence in the context of offenders who commit offences in a position of trust, stating at [20]:
The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the child.
(emphasis added)
In relation to the offender’s attitude towards his offending, I note that the offender has engaged with a counselling program as outlined above and made admissions and apologies concerning the offending. Nevertheless, I note that the pre-sentence report indicated that the offender did not “seem to understand what other ramifications his actions may have had on his victim”.
Overall, in my view, in the exercise of my independent discretion, the appropriate starting point is 28 months. Given the seriousness of the offending and the need for specific and general deterrence the sentence will be served by way of full-time imprisonment.
That sentence will be discounted by 25% to 21 months in accordance with the discussion above concerning the offender’s plea of guilty which was made at an early stage of proceedings and was of significant utilitarian benefit.
In relation to the appropriate non-parole period, I note that the “usual range” in this jurisdiction is between 50 and 70% of the head sentence: Zdravkovic v The Queen [2016] ACTCA 53 at [74]; Barrett v The Queen [2016] ACTCA 38 at [52]; Taylor v the Queen [2014] ACTCA 9 at [20].
Relevant to the assessment of the non-parole period are a range of factors, including rehabilitation and specific and general deterrence: Toumo’ua at [37].
As I noted above, this case was above the medium or middle level of seriousness and general and specific deterrence are important considerations in offences of this type, particularly given the position of trust and care the offender had over the victim.
Balancing those considerations against the offender’s prosects of rehabilitation and noting the steps he has taken to engage in counselling programs, in my view, the appropriate non-parole period is 13 months, reflecting approximately 62% of the head sentence.
Orders
The orders of the Court are as follows:
(a) The appellant is granted leave to appeal out of time.
(b) The appeal is allowed.
(c) The sentence imposed by McWilliam AJ on 24 September 2021 is set aside.
(d) The offender is resentenced as follows:
(i) In respect of the offence of an act of indecency with a young person under the age of 10 years (CAN 4406/2021) the offender is sentenced to 21 months imprisonment commencing on 24 September 2021 and expiring on 23 June 2023.
(ii) The non-parole period is 13 months commencing on 24 September 2021 and expiring on 23 October 2022.
RANGIAH J:
The sentencing judge was required to determine under s 35(3) of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), the extent to which a “lesser penalty” should be imposed for the appellant’s plea of guilty. Her Honour considered that as the prosecution case was strong, a lower sentencing discount should be applied.
I agree with Mossop J and Loukas-Karlsson J that the sentencing judge erred in taking into account the strength of the prosecution case when determining the sentencing discount, but have arrived at that conclusion through a slightly different path of reasoning.
Section 33 of the Sentencing Act sets out a non-exhaustive list of considerations that a sentencing court must consider. That section provides, relevantly:
33Sentencing—relevant considerations
(1)In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
…
(j)a plea of guilty by the offender (see section 35);
…
(w)whether the offender has demonstrated remorse;
…
(za) current sentencing practice.
…
(3)Subsections (1) and (2) do not limit the matters a court may consider in deciding how an offender should be sentenced (if at all) for an offence.
…
It may be seen that s 33(1)(j) of the Sentencing Act requires a sentencing court to consider s 35, which allows a lesser penalty to be imposed where there has been a plea of guilty and there is a real likelihood that the offender will be sentenced to imprisonment. Section 35 provides, relevantly:
35Reduction of sentence—guilty plea
(1)This section applies if—
(a)an offender pleads guilty to an offence; and
(b)based on the information currently available to the court, the court considers that there is a real likelihood that it will sentence the offender to imprisonment.
(2)In deciding how the offender should be sentenced (if at all) for the offence, the court must consider the following matters:
(a)the fact that the offender pleaded guilty;
(b)when the offender pleaded guilty, or indicated an intention to plead guilty;
(c)whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty;
(d)the seriousness of the offence;
(e)the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement.
NoteFor who may make a victim impact statement, see s 49.
(3)The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.
(4)However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.
(5)For subsection (2) (b), the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the court may impose.
(6)A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
…
The “lesser penalty” that may be imposed under s 35(3) of the Sentencing Act is commonly referred to as a “sentencing discount” or “discount”. It is applied after the otherwise appropriate sentence has been determined: see R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [33].
Even before the enactment of s 35, a plea of guilty was ordinarily a matter to be taken into account in mitigation. In Siganto v The Queen (1998) 194 CLR 656, the High Court at [22] explained the reasons why:
… [F]irst, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.
In R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103, the Court of Appeal held at [70] that s 35 of the Sentencing Act is “largely focused” upon the second reason, which it described as, “the timing of the plea of guilty and its associated utilitarian value”. The Court observed at [68] and [79] that the first reason, remorse, is identified under s 33(1)(w) as a discrete and separate consideration to be taken into account when fixing the starting point for the head sentence. Accordingly, it was held at [79] that it was “inappropriate” for the sentencing judge to have, “factored the consideration of remorse into the discount for a plea of guilty”.
Similarly, in Cranfield v The Queen [2018] ACTCA 3, the Court of Appeal held at [36] that the sentencing judge had, “confused the issues of utilitarian value (which is largely concerned with the timing of the plea and related benefit to the justice system) and sparing the victim (a consideration that is primarily relevant to an assessment of the offender’s remorse)”.
In Toumo’ua and Cranfield, it was held that the sentencing discount was “largely” to be determined by the utilitarian value of a plea of guilty. Section 35 cannot be described as solely concerned with utilitarian value because the section requires some matters unrelated to utilitarian value to be considered. These are: the seriousness of the offence (s 35(2)(d)); the effect of the offence on victims, their families and others (s 35(2)(e)); whether the prosecution case was overwhelmingly strong (s 35(4)); and whether any lesser penalty would be unreasonably disproportionate to the nature and circumstances of the offence (s 35(6)). Apart from these matters, however, the determination under s 35(3) of any lesser penalty turns upon the utilitarian value of the plea of guilty.
In Zhao v The Queen [2018] ACTCA 38, the Court of Appeal held at [29] that the sentencing judge was correct in determining that, “the discount for the utilitarian value of the appellant’s pleas was not affected by the strength of the prosecution case”. For that conclusion, the Court cited Toumo’ua, where it was held at [71] that, “in cases involving a strong but not “overwhelmingly strong” prosecution case, there is no reason to reduce the discount given for the utilitarian value of a plea of guilty”. The Court also cited R v Sutton [2004] NSWCCA 225; 41 MVR 40 where it was held at [12] that, “the strength of the Crown case is an irrelevant factor in determining the utilitarian value of the plea of guilty”: see also R v Borkowski at [32]. That is because, as was explained in Coggan v The Queen [2013] ACTCA 49 at [20], even a strong prosecution case requires an enormous amount of work if it has to be made out in a defended trial.
In Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27, Wigney J at [74] quoted the passage referred to above from Toumo’ua at [71] with evident approval. Therefore, Miller cannot be understood as supporting any proposition that the strength of the prosecution case may be relevant to the level of discount assessed under s 35(3) of the Sentencing Act, other than in a case where s 35(4) applies.
Accordingly, it is well established that: (a) s 35 of the Sentencing Act is largely concerned with the utilitarian value of a plea of guilty; and (b) in determining such utilitarian value, the strength – or weakness – of the prosecution case is irrelevant.
The strength of the prosecution case only assumes relevance for s 35(3) of the Sentencing Act where it is contended that the prosecution case is overwhelmingly strong, such that, under s 35(4), no significant reduction for a plea of guilty can be made.
In the present case, the respondent did not submit that the prosecution case was overwhelmingly strong, nor that a lesser penalty would be unreasonably disproportionate to the nature and circumstances of the offence. The respondent did not submit that the discount was affected by the seriousness of the offence or its effect on the victim or her family. Therefore, the only matter affecting the determination of the lesser penalty under s 35(3) was the utilitarian value of the plea of guilty. The strength of the prosecution case was irrelevant to that determination.
The sentencing judge found:
18.The offender was arrested the day after the offence occurred, on 27 April 2021. He was granted bail the following day and has therefore spent one day in custody.
19. He pleaded guilty on 6 July 2021 in the Magistrates Court. That was the sixth mention of the matter (although three of those mentions were bail variations). It was also in advance of a hearing and saved the public expense of a trial. The conduct of a trial would have been an extremely stressful experience for the child victim and her mother. The offender is entitled to recognition of that guilty plea, having regard to its utilitarian value: see ss 35(2) and 35(3) of the SentencingAct.
20.As to the consequent discount applicable to the ultimate sentence, the offender had made some admissions to his de facto partner and to police on the night of the offending. The admissions as to the actual conduct were consistent with what the child victim had reported, noting that the complaint was made contemporaneously, on the day the offending conduct occurred. Having also had regard to the other matters set out in ss 35(2) - 35(4) of the Sentencing Act, some of which are discussed in more detail below, I assess the appropriate discount at just shy of 18 per cent, reflecting the strength of the Crown case.
It may be seen that the sentencing judge reduced to 18% the sentencing discount that would otherwise have been applied because of the strength of the prosecution case. However, the strength of the prosecution case was irrelevant to the appropriate discount. It should be acknowledged that her Honour was led into error by the respondent’s inaccurate submissions.
It is necessary to resentence the appellant. In R v Thomson [2000] NSWCCA 309; 49 NSWLR 383, Spigelman CJ (with whom the other members of the Court agreed) held at [160]:
The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
In Monfries v The Queen [2014] ACTCA 46; 68 MVR 385, Murrell CJ (Burns and Ross JJ agreeing on this point) observed at [44] that, “the ACT courts have adopted an approach to s 35 discounts that is very similar to the NSW Thomson approach to discounts for utilitarian value”.
In Williams v The Queen [2018] ACTCA 4; 83 MVR 505, the Court of Appeal indicated at [48] that, “a discount of 25% might be considered a “normal” result for an early plea, which almost inevitably carries with it significant utilitarian value”. In Miller, Wigney J (Murrell CJ and Elkaim J agreeing on this point) accepted at [76] that, “it is common, if not customary, in this jurisdiction for a discount of 25% to be given where a plea of guilty was entered at an early stage in the Magistrates Court”. The appellant also cited a number of cases where a 25% discount was applied by single judges of the Supreme Court in circumstances where a plea of guilty was entered in the Magistrates Court following several mentions.
I agree with Mossop J and Loukas-Karlsson J that the appropriate starting point is 28 months’ imprisonment to be served by way of full-time imprisonment.
It is necessary to consider the appropriate sentencing discount under s 35(3) of the Sentencing Act. Section 33(1)(za) of the Sentencing Act requires that current sentencing practice be considered. The practice does not appear to be to reserve a discount of 25% for a plea of guilty at the earliest stage possible, but ordinarily to apply that discount for any plea of guilty in the Magistrates Court that can be described as early. On that basis, I agree with the conclusion of Mossop J and Loukas-Karlsson J that a 25% discount should be applied for the utilitarian value of the plea of guilty.
I also agree with Mossop J and Loukas-Karlsson J that a non-parole period of 13 months is appropriate. I agree with the orders proposed by their Honours.
| I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the Reasons for Judgment of the Court Associate: Date: 30 August 2022 |
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